The NJ Supreme Court has issued an opinion upholding the Attorney General’s June 2020 Law Enforcement Directives (Directive 2020-5 and Directive 2020-6) that requires public disclosure of the names of police officers who have committed serious disciplinary violations that result in the imposition of “major discipline.”
Directive 2020-5 applies to all law enforcement agencies in the State, including local police departments, while Directive 2020-6 only applies to the State Police and other agencies within the Department of Law and Public Safety. Both directives encompass all findings of major discipline after January 1, 2020. However, for the State Police and other agencies within the Department of Law, major discipline dating back twenty years would be disclosable.
Shortly after being issued, various groups including a number of groups representing law enforcement officers challenged the directives based on a number of grounds. One of the primary arguments made challenging the Directives revolved around the perceived conflict between the Directives and the personnel records exemption found in the Open Public Records Act (“OPRA”). In dealing with this threshold issue the Court found no conflict. Ruling that OPRA clearly provides that the personnel exemption does not apply to personnel records, “required to be disclosed by another law,” and reiterating previous holdings that have held Directives from the Attorney General are such a law.
Another argument made by those challenging the Directives was that officers who had settled disciplinary violations prior to the new Directives’ requirement to disclose the officer’s name may have relied on the Attorney General’s former practice of shielding names from disclosure as part of the reason for agreeing to settle a disciplinary action, a sort of promissory estoppel claim. The Court drew a distinction between the release of names related to disciplinary actions settled prior to the date of the Directives, and those settled after, finding it necessary for additional litigation to consider whether officers who settled their disciplinary cased prior to the Directive have a valid promissory estoppel claim.
While the Directive to release names dating back twenty years only applies to the State Police and other agencies, municipal law enforcement departments are also given the authority to release the names of officers disciplined prior to the date of the Directives. Therefore, any municipal law enforcement agency that wishes to release the names of officers disciplined prior to the Directive date should be aware that they would also likely be subject to “as applied” challenges. Meaning, those disciplined prior to the issuance of the Directive could have an opportunity to challenge the release of their name in court.
Records custodians should review this opinion with their own municipal attorney for additional information and guidance.
Contact: Frank Marshall, Esq., Associate General Counsel, FMarshall@njlm.org or 609-695-3481 x 137.